NO. 91

-130 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Appellant,

### -vsHARVEY WALTER NIEMI, Defendant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD: For Appellant: Patrick L. Paul, County Attorney; Steven Hudspeth, Deputy, Great Falls, Montana

For Respondent: Daniel Donovan, Great Falls, Montana

Submitted on Briefs: September 19, 1991 Decided: February 19, 1992Justice Karla M. Gray delivered the Opinion 

### of the Court. The State of Montana appeals a judgment of conviction and sentencingorder fromtheEighthJudicialDistrict,CascadeCounty, which sentenced Harvey Walter Niemi (Harvey) to ten years imprisonment for attempt (deliberate homicide) and two years imprisonment for use of a dangerous weapon, both sentences suspended except for fifteen days already served. The District Court further sentenced Harvey to 4000 hours of community service. We affirm on another ground. We rephrase the issues presented on appeal to the following: Did the District Court err when it suspended Harvey's sentences of ten years imprisonment for attempt (deliberate homicide) and two years imprisonment for use of a dangerousweapon under 55 46-18-201(5) and -221(3), MCA? Harvey and Katherine Jean Niemi (Jean) were married 

### on June 10, 1966. Following their marriage, the couple resided in Great Falls,Montana. Both Harvey and Jean were employed as teachers: Jean retired in 1988 and Harvey retired in 1989. Through the years, Harvey and Jean generally were viewed as a happily married couple. Many perceived Harvey to be 

### a mild-mannered, non-violent, and kind person. Prior to January 1990, Harvey's criminal record consisted of one minor traffic violation.

2On January 9, 1990, Harvey and Jean began 

### a normal day at home. Following a noon-time meal, Harvey told Jean that he was going to a local 

### store to purchase some remodeling supplies. However, Harvey did not leave the home. He went to the basement, changed his clothing,put on an old pair of eyeglasses and a pair of panty hose overhis head, and placed rubber gloves onhis hands. He then waited for Jean to enter the basement. When Jean entered the basement to use a bathroom, Harvey stabbed her several times with a knife, wounding her in the head, chest, stomach, and hand. Following the stabbing,Harvey expressed remorse and said he could not understand how he could have committed such an offense. Jean recovered from the stab wounds. On January 23, 1990, the State charged Harvey by information with one count of attempt (deliberatehomicide). Harvey pled not guilty to this charge on February 14, 1990. A jury trial was held

on November 13 to November 20, 1990. At the trial, Harvey testified that for years he had repressed anger concerning Jean. He further testified that at the time of the stabbing, he felt he

was not in his body, but rather, was above and behind his body, watching what was happening. Dr. William Stratford, a psychiatrist, testified that at the time of the stabbing, Harvey experienced a dissociative state of mind. On November 20, 1990, the jury found Harvey guilty of the charged offense.

3Prior to sentencing,Harvey moved the District Court to find that 

### 5 46-18-222, MCA, exempted him 

### from the mandatory minimum sentencing penalties contained in § 45-5-102(2), MCA, the sentencingprovision for deliberatehomicide, and § 46-18-221(1), MCA, a sentencingprovision foruse of a dangerousweapon. Harvey argued that 5 46-18-222(2) and (3), MCA, exempted him from the mandatory minimum sentencesbecause at the time he stabbed Jean 1) his mental capacity was significantly impaired, and 2) he was acting under unusual and substantial duress. At the sentencing hearing, Harvey abandoned his argument that he was acting under unusual and substantial duress at the time he stabbed Jean but maintained that his mental capacity was significantly impaired. Following oral argument, the District Court found that Harvey's mental capacityat the timehe stabbed Jean did not exempt him from the mandatory minimum sentences under 55 45-5-102(2) and 46-18-221(1), MCA. The District Court sentenced Harvey to ten years imprisonment for attempt (deliberatehomicide) and twoyears imprisonment for use of a dangerous weapon, both sentences suspended except for fifteen days already served. The District Court further sentenced Harvey to 4000 hours of community service. The State filed its notice of appeal regarding Harvey's sentence on January 15, 1991. Harvey likewise filed a notice of appeal onMarch 8, 1991. OnJune 4, 1991, the State filed a brief, which in part anticipated and discussed issues Harvey could raise

4

### in his cross-appeal. On August 6, 1991,Harvey filed a brief that resemblesthe format of a cross-appeal. OnAugust 13, 1991,Harvey moved this Court to stay his appeal pending the outcome of the State's appeal under Montana Rule of Appellate Procedure 3. On September 9, 1991, this Court granted Harvey's request for a stay of his appeal. Because Harvey's cross-appeal has been stayed by this Court, issues raised by both the State and Harvey in their respective briefs that pertain to Harvey's cross-appealwill not be discussed herein. Accordingly,wewill limitour discussionto the following issue: Did the District Court err when 

### it suspended Harvey's sentences of ten years imprisonment for attempt (deliberate homicide) and two years imprisonment foruse of a dangerous weapon under 

### 55 46-18-201(5) and -221(3), MCA? The District Court at the sentencing hearing held that Harvey'smental capacity at the timehe stabbed Jean did not exempt him frommandatory minimum sentencing under § 46-18-222, MCA. The District Court acknowledged, however, that 

### it was a "close question" as towhether Harvey's mental capacity was significantly impaired at the time of the offenseunder 5 46-18-222(2), MCA. The District Court stated: When you look at what happened here, the overall event that occurred 

### it is almost incredibleand it 

### is difficult to believe that anybody in their right mind in full

5possession of theirmental facultieswould have committed this offense under these circumstances. 

# . . . And although therehasbeen apsychiatric explanation of what happened, this dissociative state, the jury did not accept that offered evidence in determining guilt of Mr. Niemi. Although the required proof, I think, to establish this mental capacity exception, I don't think it requires proof beyond a reasonable doubt as do the elements of the criminal offense. But, Ireally question whether 

## -- there is certainly some indication, certainly some testimonyhere that themental capacity of Mr. Niemi was impaired at that time when this offense occurred and maybe for a short period of time before it occurred when he was waiting. But, 

### I find it difficult to accept that Mr. Niemi's mental capacitywas so significantly impaired to justify an exception frommandatory minimum sentence.



# ... This is the most unusual criminal case that I have presided over in my 14 years on the bench. It's very bizarre. Serious and yet the people that are involved are exemplary people and it just borders on mind boggling. The District Court further held that incarceration in this instance would be inappropriate in light of Harvey's stellar community service record, the nature of the offense, the unlikelihood that Harvey would ever attempt to harm Jean again, Harvey's remorse, and his lack of a previous criminal record. Thereafter,the District Court, inter alia, sentencedHarvey to the mandatory minimum sentence of ten years imprisonment for attempt

(deliberatehomicide) under 5 45-5-102(2), MCA, and the mandatory minimum sentence of two years imprisonment for use of a dangerous weapon under § 46-18-221(1), MCA; the court suspended both sentences except for fifteen days already served. The District Court cited State v. Arbgast (1983), 202 Mont. 220, 656 P.2d 828,

6as authority for 

### its ability to suspend Harvey's mandatory

### minimum sentences. The State argues that Arbaast 

### is not applicable to these facts. The State further argues that the District Court erred by suspending the sentences in this case under 55 46-18-201(5) and -221(3), MCA. Section 46-18-201(5), MCA, provides "[elxcept as provided in 46-18-222, the imposition or execution of the first 10 years of a sentence of imprisonment imposed under 45-5-102 may not be deferred or suspended." Section 46-18-221(3), MCA, provides that the mandatory minimum sentence for use of a dangerous weapon "may not be deferred or suspended, except as provided in 46-18- 222." The State argues that because the District Court held that § 46-18-222, MCA, did not apply, 55 46-18-201(5) and -221(3), MCA, require the court to sentence Harvey to serve twelve years imprisonment for attempt (deliberate homicide) and use of a dangerous weapon. We agree that Arbcrast is not applicable here. In Arbqast, suspensionof thedefendant's sentencewas 

### &specifically limited by statute to one of the exceptions contained in 5 46-18-222, MCA. Here, both statutes under which Harvey was sentenced expressly prohibit suspension of the sentence unless 5 46-18-222, MCA, applies. However, following a careful review of the record, we hold that the sentences at issue herein can be suspended because

7Hamey's mental capacity 

### at the 

### time of the offense was significantly impaired under 5 46-18-222(2), MCA. Section 46-18- 222(2), MCA, provides inpart that a defendant's mandatory minimum sentencemay be suspended if "the defendant's mental capacity, at the time of the commission of the offense for which he is to be sentenced,was significantly impaired, althoush not so impaired as to constitute a defense to the prosecution." [Emphasis added.

### 3 Here, the jury did not find that Dr. Stratford's testimony concerning Harvey's mental state supported a defense to the offense. However, 5 46-18-222(2), MCA, still allows a court in sentencing a defendant to suspend mandatory minimum sentencing if 

### it findsthedefendant'smental capacitywas significantly impaired but not so impaired as to constitutea defense. We emphasize again that the DistrictCourt stated that the issue ofwhether Harveywas significantly impaired was a "close question." Moreover, 

### we are persuaded by 

### Dr. Stratford's testimony, which details how Harvey experienced a dissociative state of mind at the time of the offense. We therefore affirm the result of the District Court's judgment of conviction and sentencing order on the ground that Harvey 

### is exempt from mandatory minimum sentencing under 5 46-18- 222(2), MCA.

8We 

### concur:

/

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# I 1’- i 

## ,

9February 19,

### 1992 CERTIFICATE

### OFSERVICE Iherebycertifythat thefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed: Hon. Marc Racicot, Attorney General JusticeBuilding Helena,MT 59620 Patrick Paul,CascadeCountyAttorney StevenHudspeth,DeputyCountyAttorney CascadeCountyCourthouse Greatfalls,

### MT 59401 Daniel Donovan Attorneyat

### Law P.O.Box6573 GreatFalls,MT 59406 

### ,Asst.AttyGen

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA